Skidmore v. Stewart

75 So. 1 | Ala. | 1917

SOMERVILLE, J.

(1) While the mortgage deed provides only for the expenses of a sale under the power, the note provides for an attorney’s fee for its collection if it be not paid at maturity. A foreclosure suit in chancery is one of the legal methods of collection, and complainant is entitled to a reasonable allowance for his solicitor’s fee in that behalf, herein incurred or expended.—Stephenson v. Allison, 123 Ala. 439, 449, 26 South. 290. And, of course, the default in the payment of the secured debt sufficiently exhibits a necessity for a suit and its attendant expenses. It is to be observed that the bill does not aver a stipulation based upon a conditional necessity for foreclosure in chancery, but only for collection by an attorney. The case is therefore distinguishable from that of A. F. L. M. Co. v. McCall, 96 Ala. 200, 11 South. 288.

If this were an attempt to recover an attorney’s fee incidental to a foreclosure under the power in the mortgage, it would be denied, because the mortgage makes no provision therefor, and the provision in the note does not relate to an ex parte proceeding for the mere subjection of the security to the debt.—Tompkins v. Drennen, 95 Ala. 463, 465, 10 South. 638; Perry v. Seals, 186 Ala. 514, 65 South. 151.

(2) It is a familiar maxim of the law that courts do not reform or redress those acts of parties which are the result of pure mistake of law.—Hemphill v. Moody, 64 Ala. 468. “But,” as observed by Stone, J., in that, case, “in civil proceedings, this rule, owing to its hardship, has been treated as one stricti juris; and if there was intermixed with the mistake of law any mistake of fact, courts have willingly seized upon it, and made it the the ground of relief. There is a class of cases, hard to distinguish from mistakes of law, where, through mistake, a written agreement contains substantially more or less than the parties intended, or where, from ignorance or want of skill in the draftsman, the object and intention of the parties, as contemplated by the agreement, is not expressed in the written instrument, by reason of the use of inapt expressions; on which the court of chancery, on clear and satisfactory proof of the mistake, will reform such agreement, and make it conform to the true intention of the contracting parties. * * * The principle on which courts relieve, in cases falling within this class, is that through ignorance, or misapprehension of the legal effect of the terms agreed upon (italics supplied), the parties have made a contract, variant in legal construction from the one intended.—Trapp v. Moore, 21 Ala. 693; Larkins v. Biddle, 21 Ala. App. 252.”

This liberal and wholesome rule has also in later cases been declared and applied by this court.—Moore v. Tate, 114 Ala. 582, 21 South. 820 ; Orr v. Echols, 119 Ala. 345, 24 South. 357; Page v. Whatley, 162 Ala. 473, 50 South. 116; Hataway v. Carnley, 198 Ala. 39, 73 South. 382.

(3) We think the allegations of the bill are sufficient, both as to form and substance, to bring complainant’s case for reformation within the scope of the principle above declared, and the demurrer was, as to this aspect of the bill, properly overruled.

(4) The proper relief, in this regard, would be the reformation of the quitclaim deed by inserting a restriction of the interest therein conveyed to such interest as the grantor acquired by virtue of his tax deed. The special prayer of the bill, in this aspect, is inapt, but the appropriate relief may be given under the general prayer; and the mere inaptitude of a special prayer is not a good ground of demurrer.

(5) The appointment of a receiver in aid of a foreclosure suit is not a mere matter of course. It must be clearly shown, by allegation and by evidence, that the mortgage security is inadequate, and the mortgagor insolvent, or that there is fraud, or other misconduct whereby the rights of the mortgagee are actually imperiled.—Scott v. Ware, 65 Ala. 174, 184; Ashurst v. Lehman, 86 Ala. 370, 5 South. 731; Jackson v. Hooper, 107 Ala. 634, 18 South. 254; 27 Cyc. 1624. See, also, generally, Hayes v. Jasper Land Co., 147 Ala. 340, 41 South. 909.

(6) The bill of complaint states appropriate purposes to be accomplished by a receiver; but the mere allegation that a receiver “is necessary” for such purposes is but the conclusion of the pleader, and entirely insufficient. The facts that create the necessity ought to be clearly alleged.

The demurrer to this aspect of the bill should have been sustained.

The decree of the chancellor will be affirmed as to all the grounds of demurrer, except those to the sufficiency of the bill as for the appointment of a receiver, and a decree will be here rendered sustaining the demurrer to the bill in so far as it seeks a receivership for the mortgaged property.

The costs of this appeal will be apportioned equally between appellant and appellee.

Affirmed in part, and reversed, rendered, and remanded in part.

Anderson, C. J., and Mayfield and Thomas, JJ., concur.